Below is my column on Elizabeth Warren and recent campaign promises that raise serious constitutional and legal questions. It is striking how some elements despised in President Donald Trump seems celebrated in Elizabeth Warren.
Here is the column:
If imitation truly is the sincerest form of flattery, Donald Trump must be positively blushing. Sen. Elizabeth Warren (D-Mass.) increasingly sounds, well, Trumpian in her efforts to push her campaign into higher gear, with presidential actions that might not meet constitutional or legal standards.
This week, Warren announced she would circumvent Congress and act unilaterally on “Day 1” in office to wipe out college debt for 42 million Americans. With many members of Congress, including Warren, accusing Trump of behaving like an unelected monarch by acting unilaterally, it is curious that she would pledge to do precisely the same thing in this and many other areas. It would seem that the problem with Trump is not that he is acting unilaterally but is not doing so for liberal causes.
Thus, Warren pledges action by executive order to carry out her $640 billion college-loan plan — all without Congress. She also pledged this week to roll back various regulatory changes and to stop all drilling and mining on federal lands. And she has pledged trillions of dollars in federal programs — including free health care, free child care and free college — that, she says, will not cost a cent to the middle class. Rather than promising to make Mexico pay for it, as with Trump’s border wall, Warren pledges to make “billionaires” pay for it.
The only thing she doesn’t add is a promise to move “bigly” on Inauguration Day.
There always has been a glaring contradiction in the objections to Trump’s unilateral actions by Democrats who supported President Obama in repeated circumventions of Congress, in areas ranging from war powers to immigration to the environment. Indeed, Obama announced in a State of the Union address, after Congress refused to yield to his demands in areas like immigration, that he would order the changes by executive order — and Democrats wildly applauded his pledge to make them completely irrelevant.
Warren seems to be channeling Trump in a number of ways as she looks for a breakout moment in Iowa. Her pledge of trillions of dollars in free stuff is largely to be funded on her dubious wealth tax. As I have previously written, the proposed taxing of wealth rather than income would arguably violate the Constitution. That, however, doesn’t matter: Warren is pledging a new “Great Society” to be built free of charge.
It is not her only pledge relying on a questionable legal basis. Where Trump demonized the undocumented, Warren demonizes the incorporated.
In one speech, the senator declared: “Sure, these companies wave the flag — but they have no loyalty or allegiance to America.” It seems there is this hoard of the well-heeled just over the border of Manhattan that is sitting on Warren’s college fund for every American. She has thrilled supporters by threatening the wealthy that she is coming for “your Rembrandts, your stock portfolio, your diamonds and your yachts.” In an earlier debate, Warren literally rubbed her hands together while saying she couldn’t wait to grab some of the money of fellow presidential candidate and former Democratic congressman John Delaney of Maryland, a self-made multi-millionaire.
The striking similarities with Trump extend beyond the rhetorical. Democrats often raise the fact that Trump once was viewed not just as a Democrat but as fairly liberal before deciding to run for president; his current conservatism is dismissed as an opportunistic repackaging of his brand. Yet, Warren went through some relatively late repackaging herself; she once was a Republican who served as a consultant for those flag-waving companies she now denounces.
In her 2003 book, “The Two Income Trap,” she railed against a “quasi-socialist safety net to rival the European model.” That was one “dream big” idea that Warren thought was a nightmare. It was only when she went to Harvard at age 47 in the late 1990s that she became a Democrat. Before that, friends described her as a “die-hard conservative” and “anti-consumer.”
People can change, of course, and whatever Warren once was, she is now an often inspiring advocate for those left behind in our economy. The point is only that what is denounced regarding Trump — often with good reason — is celebrated, or at least ignored, regarding Warren. The reason seems to be that wild promises, unconstitutional pledges and unilateral actions are all outrages unless done for the right cause. They then become gutsy, even noble.
The promise of paying for college, one seized Rembrandt at a time, is not Warren’s only questionable legal claim. Warren’s pledge — also made by fellow presidential candidate Sen. Amy Klobuchar (D-Minn.) — to unilaterally reduce drug prices is a good example. Warren and Klobuchar have been unsuccessful in pushing legislation that would reduce drug prices, so Warren is pledging to do it on her own as president. She is, however, misleading voters on the ease of such a move.
She appears to be referring to what is called a “march-in” move under a provision allowing the government to license a new patent when an invention or drug is developed with government support. Most drugs did receive such support — but the law also requires that the drug not be made “available to the public on reasonable terms.” That is a highly debatable conclusion in a market-pricing case. Moreover, both the Bush and Obama administrations rejected this type of claim to control drug pricing. Only a handful of “march-in” petitions have ever been filed and, in 2004, the National Institute of Health rejected it, declaring that “the extraordinary remedy of march-in is not an appropriate means of controlling prices.”
Thus, it is highly doubtful that Warren could just “march in” to office and slash drug prices, any more than she similarly could wipe out student debt.
From the perspective of the separation of powers, the question is whether Democrats want to enthrone a new monarch after deposing the old one. But if Democrats are only seeking a liberal Donald Trump without the MAGA hats and Twitter addiction, Elizabeth Warren seems to have “a plan for that.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is a legal analyst for CBS News and the BBC.